The Doctor's Freedom of Conscience

WASHINGTON (CNS) – Dr. Oscar Biscet ran afoul of Cuba's communist regime in 1998 when he spoke out against the barbaric abortion practices at his hospital in Havana, which included even the killing of born-alive infants.

In retaliation, he was suspended from practicing medicine, he and his wife (a nurse) were both fired, and they were evicted from their family home. Biscet was subsequently and repeatedly harassed by the police and by mobs of Castro lackeys, arrested 27 times (some of them for protesting the regime that had ruined him personally), and given two substantial prison terms.

This month, Biscet was finally released after serving nearly a decade of a 25-year sentence for counterrevolutionary activities. A devout Christian living in a country where an estimated six in 10 pregnancies end in abortion, he felt an obligation of conscience to do something. He paid a huge price for having a conscience, because Cuba is not free in the important sense identified by another man who lived under Communism, Pope John Paul II:

"Freedom consists not in doing what we like, but in having the right to do what we ought."

One mark of a free society is that its government does not criminalize virtue or compel formal cooperation in evil. Our medical professionals in the United States are mercifully protected from most compulsion where abortion is concerned. Hospitals and clinics that receive federal money – and that is nearly all of them – cannot compel medical professionals to perform or participate in abortions, nor even to refer for them.

Unfortunately, the Obama administration just last month overturned an attempt to strengthen these legal protections through a Department of Health and Human Services regulation, despite public comments that ran two-to-one in favor of the regulation.

The clearest consequence is in the area of "informed consent," the medical advice doctors can or must give patients. In 2008, the Bush administration had issued a rule that would have protected doctors and hospitals that counsel pregnant women from being sued for not presenting abortion as a medical alternative.

The Bush administration had seen a need to clarify these protections after the ethics committee of the American College of Obstetricians and Gynecologists issued an opinion in late 2007, indicating its dim view of conscientious refusals – they "create or reinforce racial or socio-economic inequalities in society."

The committee essentially demanded that, in any context where it might matter, doctors set their morals aside. With this opinion as the professional standard, and absent explicit regulatory conscience protections, professional bodies could destroy the livelihood of conscientious physicians by withholding or even revoking their board certification.

The opinion could also help build a legal malpractice case against any doctor who won't suggest abortion as an alternative.

It would be nice if conscience protection rules were inspired by mere paranoia, but this is not so. Last year, the American Civil Liberties Union wrote two letters to the administrator of Medicaid, demanding that "religiously affiliated hospitals" be required to perform direct abortions in certain emergency situations – something the Catholic Church teaches is never justifiable. The ACLU asserted that Catholic hospitals in particular "cannot invoke their religious status to jeopardize the health and lives of pregnant women seeking medical care."

Of course, the church has no quarrel with any life-saving treatment for a pregnant woman, even if it regrettably causes the death of an unborn child as a foreseen but unintended consequence. But this is not good enough for the ACLU, whose logic strongly resembles that which justified the Cuban government's persecution of Biscet.

Ironically, the pagan father of medicine would have objected to the ACLU's active persecution of those seeking to live according to their consciences, and even to the "ethics" standards of the American College of Obstetricians and Gynecologists. The famous Hippocratic oath contains an explicit prohibition of abortion.